Fifth Amendment Right Against Self Incrimination

The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. When someone exercises this right, we often say that they “plead the Fifth.”

The Constitution grants this right quite simply: “[No person]…shall be compelled in any criminal case to be a witness against himself…” However, as with most other constitutional rights, it is subject to interpretation by the courts and often inspires fierce debate.

The Origin of Pleading the Fifth

The right against self-incrimination is rooted in the Puritans’ refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.

Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.

Testifying in a Legal Proceeding

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s own lawyer cannot force the defendant to take the witness stand against his or her will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.

When a defendant pleads the Fifth, jurors are not permitted to take the refusal to testify into consideration when deciding whether a defendant is guilty. In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” This case beefed up an earlier ruling that prosecutors can’t ask a jury to draw an inference of guilt from a defendant’s refusal to testify in his own defense.

Defendants may assert their Fifth Amendment rights during civil trials, too, if testimony would open them up to criminal charges. But they do not enjoy the same protections against jury bias with respect to liability. This means that a jury is free to make inferences when a defendant chooses not to testify in a civil trial for fear of self-incrimination. Civil defendants often claim ignorance (“I don’t recall”) instead of pleading the Fifth in such situations.

Can Any Witness Plead the Fifth?

At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses (as well as defendants) in organized crime trials often plead the Fifth, for instance.

But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify (typically by subpoena).